Li v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 541

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Li v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 541

File number(s):

SYG 1517 of 2020

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

17 April 2025

Catchwords:

 MIGRATION – Partner (Temporary) (Class UK) (subclass 820) visa – where evidence has not been provided to establish family violence – whether the Tribunal ignored relevant consideration – whether the Tribunal failed to put adverse information to the applicant – whether the Tribunal asked inappropriate questions – whether the Tribunal erred in rejecting a report from a medical practitioner – proposed grounds of judicial review have no merit – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 358A, 359A,

Migration Regulations 1994 (Cth) regs 1.23, 1.24, 1.25, 2.25, 820.221

Cases cited:

BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3;(2019) 264 CLR 421

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

54

Date of hearing:

9 April 2025

Place:

Parramatta

Solicitor for the Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Mr Burnham (Sparke Helmore)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 1517 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

XIUJUAN LI

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	17 APRIL 2025

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

2.The Applicant is to pay for First Respondent’s costs fixed in the sum of $6,500.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision of the (then) Administrative Appeals Tribunal dated 14 May 2020, affirming the decision of a delegate of the Minister for Home Affairs (“the delegate”) to refuse to grant the applicant a Partner (Temporary)(Class UK) (Subclass 820) visa (“the visa”).

2. For the reasons set out below, the application must be dismissed.

   BACKGROUND

3. The applicant is a citizen of China.

4. On 29 September 2015, she applied for a Partner (Residence) (Class BS) visa based on her relationship with her then-husband, Mr Qu, the visa sponsor.

5. On 20 January 2017, the Minister’s department wrote to the applicant, inviting comment on information provided to it, indicating that the spousal relationship had ceased.

6. On 8 March 2017, the applicant responded to the invitation with a translated statement, explaining that the relationship had broken down and indicating that she had experienced family violence perpetrated by the sponsor.

7. On 18 August 2017, the Department wrote to the applicant with a request for further evidence that she was in a spousal or de facto relationship prior to the cessation of their relationship on 12 January 2017.

8. On 11 September 2017, the applicant responded to the invitation, providing further information in relation to the parties’ relationship prior to early 2017.

9. On 10 October and 21 November 2017, the Department sent the applicant further requests for information in respect of her claims of family violence. Both requests were accompanied by information explaining the requirements under the family violence provisions of the Migration Regulations 1994 (Cth)(“the Regulations”)(CB 246-251; 252-257). The applicant did not respond to these requests. Following no response to the requests for further information, on 25 January 2018, a delegate of the Minister refused the applicant her visa.

10. The applicant then sought merits review at the Tribunal.

11. On 12 March 2020, the Tribunal invited the applicant, through her migration agent, to attend a hearing listed for 20 May 2020. The applicant was again invited to provide further evidence in support of her non-judicially determined claim of family violence. The Applicant provided some information but not in the form required.

12. On 2 May 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant a visa as she did not meet reg 820.221 of the Regulations. The Tribunal found that the relationship between the applicant and the sponsor had ended, but the applicant had not provided the evidence required under the Regulations to establish she had suffered family violence committed by the sponsoring partner.

    THE TRIBUNAL’S DECISION

13. The Tribunal provided the necessary background information to the review application at [5] – [12] of the decision record, which can be summarised as follows:

    ·The applicant and the sponsor, Mr Xincai Cu, were introduced in May 2014. The sponsor proposed marriage to the applicant in July 2014.

    ·The sponsor was granted a Subclass 600 visitor visa and entered Australia on 24 March 2015. The parties were married on 30 May 2015. The applicant departed Australia on 18 June 2015 and returned on 14 August 2015, following which she applied for a Partner visa. She provided statements from her brother and sister-in-law stating that the parties were living with them, and they believed the relationship was genuine.

    ·On 23 December 2016, the sponsor contacted the Department and advised that the relationship had ended, and he was withdrawing his sponsorship of the application. The Department then wrote to the applicant, noting that the relationship had ended and invited comment.

14. The applicant provided a statement where she made the following claims:

    •In September 2016 the applicant and the sponsor started to have disputes about money with the sponsor asking the applicant for more money every day,

    •The applicant found out that the sponsor was taking her money and using it gambling and this led to arguments and the sponsor would beat her;

    •The applicant's colleagues at work would see the injuries she suffered, but she was too embarrassed to say anything about it or call the police;

    •The applicant believed the sponsor was a very powerful man and so she was scared of him;

    •The sponsor would force the applicant to steal for him as he wanted to use those things to take back to China as gifts;

    •When stealing something for the sponsor one day, the applicant was caught by the staff at Woolworths and fined;

    •The sponsor reacted to this by calling her stupid for admitting that she stole anything;

    •When the applicant could not give the sponsor any more money he would beat her,

    •When the applicant threatened that she would call the police, when she came home, she found the sponsor had broken things and made a mess of their home;

    •The applicant did not tell anybody about her relationship apart from her brother

    •When the sponsor left the home, she had been calling him but could not get in touch with him until her agent told her that he was withdrawing his sponsorship;

    •The applicant does not know much about immigration as the sponsor had handled all this for her;

    •As the applicant is nearly 50 years old, the three-years she was married to the sponsor was precious to her; and

    •As the applicant is now familiar with life in Australia and likes her job and her life in Australia, she wants to continue to live and work in Australia.

15. The Department requested that the applicant provide the necessary information required under the Regulations to establish a claim that she had suffered family violence. The applicant did not provide any evidence to the Department.

16. The information before the Tribunal included a report from a psychiatrist, dated 30 October 2017, where the applicant had reported in November 2016 that she had been depressed following the divorce of her first husband. She was diagnosed as suffering from melancholic depression.

17. On 27 October 2017, the applicant saw the psychiatrist again and claimed that she had suffered family violence committed by the sponsor. It was recommended the applicant have ongoing psychiatric follow-up and therapy, however there is no information to indicate the applicant sought further psychiatric treatment.

18. The Tribunal wrote to the applicant to request evidence be provided to establish her claim of family violence in proper form; however, despite this, no response was received from the applicant or her agent.

19. On the date of hearing before the Tribunal, 20 May 2020, the applicant confirmed that her relationship with the visa sponsor had ended, and as at that time, she had not had contact with the sponsor since December 2016 when he left the home.

20. The applicant stated to the Tribunal that there were no court proceedings in relation to her and the sponsor, she did not make a complaint to the police about the sponsor’s behaviour, and she had never gone to a hospital, made a complaint, or required treatment in reference to the behaviour of the sponsor.

21. The applicant had no evidence other than the ‘Explanation of the Relationship’ statement she had provided and the psychiatric report. The Tribunal noted the evidentiary requirements to substantiate the claim made by the applicant, being a statutory declaration by the applicant as well as two items of evidence as specified under the Regulations.

22. In considering the claims and evidence put to it, the Tribunal was satisfied that the applicant and sponsor had been in a partner relationship, which had ceased. The Tribunal had no information before it to indicate if there were Court proceedings between the applicant and the sponsor, if the sponsor had been convicted of an offence against the applicant, or anything to indicate that there had been a judicially determined claim of family violence.

23. Therefore, the issue for determination is whether the applicant had suffered family violence committed by the sponsor within the meaning of reg 1.23 of the Regulations.

24. The Tribunal then instructed itself as to the requirements under reg 1.23, 1.24 and 2.25 of the Regulations. As the applicant’s visa application included a non-judicially determined claim of family violence, she was required to provide evidence such as a statutory declaration under reg 1.25 of the Regulations or evidence of a type and number as specified by the Minister.

25. The applicant provided a statement which did not constitute a statutory declaration, as it was not sworn before an authorised person. Although the document set out the allegations and identified the perpetrator, it did not meet the statutory requirements.

26. Further, the psychiatrist report provided does not constitute the type of evidence required to establish a claim of family violence. A statutory declaration from a treating registered psychologist could have been relied upon, however there was nothing to indicate that the applicant’s referred psychiatrist was a registered psychologist.

27. As required by the Regulations, there was no other specified evidence provided. The applicant did not provide a hospital report, or a record of assault made to a police officer or from a woman’s refuge or domestic violence crisis centre, or a social worker.

28. The Tribunal noted that it had made attempts to request the type of evidence that was required to establish the applicant’s claim, both to the applicant and her registered Migration Agent. There was no other information that the applicant had obtained to indicate that she had suffered family violence. Even if the Tribunal accepted her statement as a statutory declaration and the psychiatrist report as a type of evidence, the applicant was still missing a second type of acceptable evidence.

29. Accordingly, the Tribunal affirmed the decision not to grant the applicant a visa as they concluded that she had not established the criteria under reg 820.221(3) of the Regulations.

    GROUNDS OF JUDICIAL REVIEW

30. The applicant’s four grounds of judicial review are contained in an Originating Application filed with the Court on 23 June 2020. The grounds are as follows (errors in original):

    1.THE ADMINISTRATRIVE APPEALS TRIBUNAL HAS IGNORED RELEVANT CONSIDERING IN MAKING ITS DECISION.

    2.THE TRIBUNAL HAS NOT ADEQUATELY TAKEN INTO CONSIDERATION THE APPLICANT’S CLAIM.

    3.THE TRIBUNAL ASKED INAPPROPRIATE QUESTIONS AND MADE WRONG TEST.

    4.THE TRIBUNAL IS AFFECTED BY JURISDICTIONAL EROR IN THAT IT DID NOT COMPLY WITH ITS OBLIGATION TO PUT ADVERSE INFORMATION RELIED UPON AS PART OF THE REASON FOR THE DECISION TO THE APPLICANT FOR COMMENT.

    THE APPLICANT’S SUBMISSIONS

31. The applicant appeared before the Court unrepresented.  She was assisted by an interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that the respondent’s written submissions had been translated to her.  The Court also ensured that the applicant had access to a pen and paper so she could take notes during the course of the hearing, should she wish to.

32. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review, and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

33. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of her case.  The applicant was asked if she wished to say anything to the Court. She replied, ‘No’. The applicant was then taken to each of the grounds of judicial review and asked if she wished to say anything. She again answered ‘No’.

34. When asked if there was anything else she wished to say, the applicant stated that her former partner was a very powerful man and told her that if she made a report to the Police, she would suffer. She was very scared of her former partner and did not keep a lot of evidence.

35. At the conclusion of the fist respondent’s oral submissions, the applicant was asked if she wished to state anything in reply. She answered “No”.

    THE FIRST RESPONDENT’S SUBMISSIONS

36. The first respondent addresses grounds one and two together insofar as they relate to the “relevant” material or claims that the Tribunal ignored or did not “adequately” consider. The Tribunal decision record at [1]-[23] reveals that all the applicant’s claims and evidence were considered. After the Tribunal identified the issue for determination at [24]-[28], it considered the evidence proffered by the applicant being her statement and the Psychiatrist’ report.

37. The Tribunal found that the statement was not a statutory declaration, and the psychiatrist report did not meet the statutory requirements as it was neither a statutory declaration nor a report from a registered psychologist as required by Schedule 1 to Migration (IMMI 12/116: Specification of Evidentiary Requirements) Amendment Instrument 2012 (“IMMI 12/116”).

38. The applicant’s complaint in ground one and two therefore cannot succeed as the Tribunal did consider relevant material and her claims.

39. Ground three is a complaint that the Tribunal asked itself “inappropriate” questions. The first respondent submits that the Tribunal instructed itself as to the task before it, being to consider whether the applicant was the spouse of the sponsoring partner and then assess the applicant’s family violence claims with reference to legislative requirements. The applicant did not particularise the ground and, therefore, has not identified which questions put to her by the Tribunal were “inappropriate”. It is clear from the decision record, the Tribunal put questions to the applicant that were pertinent to the issues for determination before it.

40. Ground four is a complaint that the Tribunal did not put adverse information before the applicant for comment. Similarly, to ground three, the applicant had not identified which “adverse” information was before the Tribunal which enlivened its obligations. To the extent that ground four refers to the issues raised by the Tribunal regarding evidentiary requirements for a non-judicially determined claim of family violence, those issues do not constitute “information” in accordance with s 359A of the Migration Act 1958 (Cth). The applicant had been on notice of these requirements through invitations sent to comment dated 10 October 2017 and 21 November 2017, and the Tribunal’s hearing invitations of 12 March 2020 and 6 April 2020

41. The first respondent also raises that, contrary to the Tribunal’s findings that the psychiatrist report did not satisfy the evidentiary requirements, under the provisions of IMMI 12/116, the psychiatrist report could have satisfied these requirements. IMMI 12/116 requires a “medical report” by a person who was “registered as a medical practitioner and is performing the duties of a medical practitioner” that identified the alleged victim and “[d]etail[ed] the physical injuries or treatment for mental health that is consistent with the claimed family violence.” The Tribunal assessed the report against the requirements for a registered psychologist, even though the report indicated that it was a psychiatrist.

42. Notwithstanding this circumstance, the first respondent argues that any mistake in respect of this decision must be “material”, and this bar is not satisfied unless the error itself deprived the applicant of the possibility of a successful outcome or could have “realistically resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [2]-[3], [45], [48]-[49].)

43. The Tribunal’s decision, in this case, rested on two independent bases being that, first, the applicant had not provided a statutory declaration pursuant to regs 1.24 and 1.25 of the Regulations, and second, the applicant had not provided a minimum of two items of acceptable evidence from the list identified in Schedule 1 of IMMI 12/116. Therefore, any error identified as to the psychiatrist report would not be material in that, even if the Tribunal had accepted the statement as a statutory declaration and the report as an acceptable type of evidence, the applicant still failed to provide a second item of evidence.

    CONSIDERATION

44. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom of the decision, nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

45. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

46. In relation to any error being material in BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [50] Abrahams J said the following:

    In order for an error to be jurisdictional, it must be material, in the sense that compliance could realistically have resulted in the making of a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (SZMTA); MZAPC at [2]-[4]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 (Nathanson) at [32]. The existence or non-existence of a realistic possibility that the decision could have been different is a question of fact, of which, in an application for judicial review on the ground of jurisdictional error, the appellant bears the onus of proof: MZAPC at [2]-[4]; SZMTA at [46]; Nathanson at [32]. The onus of proving, by admissible evidence on the balance of probabilities, facts necessary to satisfy the Court that the decision could realistically have been different had the breach not occurred lies with the appellant: MZAPC at [39], [60]; Nathanson at [32].

1. In this matter, it is common ground that the applicant is no longer in a spousal relationship with her partner. In order for her visa to be granted, it would have been necessary for the Tribunal to find that she met the requirements for the grant of the visa on the basis that she was a victim of domestic violence.

2. The applicant was given a number of opportunities to provide evidence of domestic violence in the form required by the Regulations. Although some evidence was provided, it was not of the type to be sufficient to meet the requirements of the Regulations. In these circumstances, the Tribunal had no option other than to affirm the decision under review.

   Grounds one, two and three

3. Grounds one and two allege that the Tribunal has either ignored a relevant consideration or not adequately taken into consideration the applicant’s claims. Both are under particularised. For this reason alone, they can be dismissed.

4. Contrary to the applicant’s assertions, the Court is satisfied that the Tribunal considered all of the applicant’s claims and all of her evidence. Her statement was not in the format required, being a statutory declaration sworn before a qualified person.

5. The Court accepts that the Tribunal may have fallen into error in rejecting the report of her psychiatrist on the basis that it was not a report from a psychologist. As noted by the respondent, one type of evidence that could be provided under IMMI 12/116 was a report from a medical practitioner. Dr Zang was a psychiatrist and fell within the category of a medical practitioner.

6. The Court accepts the respondent’s submission; however, the error is not material as it did not deprive the applicant of the possibility of a successful outcome because there was a need for two items of evidence in addition to the applicant’s statement. A further report from a psychologist or a medical practitioner would have been required, noting there was no evidence of any judicially determined claim of domestic violence. Grounds one and two have no merit. Ground three is a non-particularised claim that the Tribunal asked inappropriate questions and made the wrong test. The Court is satisfied that the Tribunal correctly identified the tasks that were before it and considered the applicant’s claims in relation to family violence by reference to the relevant legislative requirements but found there was insufficient evidence to substantiate her claim. Ground three has no merit.

   Ground four

7. Ground four is again a non-particularised claim that the Tribunal did not comply with its obligation to put adverse information to the applicant as part of the reasons for its decision. Just what adverse information was before the Tribunal that was required to be put to her is not specified. The Court accepts the respondent’s submission that an absence of evidence or failure to meet evidentiary requirements is not “information” that was required to be put to the applicant pursuant to s 358A of the Migration Act 1958 (Cth). The applicant had been invited on multiple occasions to provide the evidence required, including being provided with information as to the types of evidence and the amount of evidence that was required. Ground four has no merit.

   DETERMINATION

8. As none of the grounds of judicial review have any merit, the application must be dismissed. The Court will hear from the parties on the issue of costs.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       17 April 2025